RSM & Anor, R (on the application of) v The Secretary of State for the Home Department

Article 17 of the Dublin Regulation is an integral part of the Dublin regime. Its discretionary power is not confined to cases falling outside the family-reunification criteria in Article 8. It may be relevant where the host Member State's procedures fail to secure the expedition required by the Regulation, particularly for an unaccompanied child.

Whether the Secretary of State has made an Article 17 decision is a question of fact, to be determined from direct or inferential evidence. Relevant published government policies are material considerations, and a decision-maker must ordinarily follow published policy. The assessment of whether the Dublin system is effective is intensely fact-sensitive. It must give proper weight to expedition, the child’s best interests, solidarity and mutual trust between Member States.

RSM, an unaccompanied Eritrean child in Italy, sought judicial review with his aunt, a British citizen willing to care for him in the United Kingdom. RSM had suffered traumatic bereavements and had engaged with the Italian asylum process, but the evidence showed substantial delay before his asylum claim could be registered and no reliable prospect of an expedited transfer to the United Kingdom.

The applicants contended that the Secretary of State had failed to consider the discretionary power in Article 17 of the Dublin Regulation. They also relied on Article 8 of the European Convention on Human Rights. The Upper Tribunal had granted permission on 5 December 2016 and made a mandatory admission order on 19 December 2016. This final judgment supplied the Tribunal’s reasons and determined an ancillary request for further declaratory relief.

1. The claim succeeded. The Tribunal ordered the Secretary of State to admit RSM to the United Kingdom and declared that she had failed lawfully to exercise the discretion under Article 17 of the Dublin Regulation.

2. There was no evidence, direct or inferential, that the Secretary of State had considered whether to exercise Article 17 before proceedings or by the permission hearing. Her subsequent evidence did not establish an implied refusal. Whether an Article 17 decision has been made is a factual question determined from the evidence.

3. Article 17 was not an exceptional power external to the Dublin scheme. It had to be construed consistently with the Regulation’s aims. It was wrong to treat it as available only where Article 8 family-reunification criteria were not met. It could have a role where the host Member State’s systems did not provide the expedition required by the Regulation. The published government statements favouring speedy transfer of vulnerable children were material considerations. The Secretary of State had not considered them, contrary to the policy-consistency principle in Lumba v SSHD [2012] 1 AC 245.

4. Applying the guidance in Secretary of State for the Home Department v ZAT and Others [2016] EWCA Civ 810, the relevant Article 8 question for a child who had engaged with the host-state Dublin process was whether there was an effective means of proceeding there. That assessment was intensely fact-sensitive. It included expedition, which carries special force for an unaccompanied child, alongside solidarity and mutual trust.

5. On the evidence, the Italian system had not processed RSM’s claim with the necessary efficacy or expedition. His best interests pointed decisively to immediate reunification with his remaining family. The very compelling circumstances threshold was met even if that higher standard applied.

6. The Tribunal declined to determine the later, effectively academic request for a declaration that its earlier order had been breached. Further factual inquiry would add cost and delay without providing practical relief or generally useful guidance. The discretion to determine academic public-law issues must be exercised cautiously and consistently with the overriding objective.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to apply for judicial review was granted on 5 December 2016.
• Upper Tribunal (Immigration and Asylum Chamber): On 19 December 2016, the Tribunal made a mandatory order requiring RSM’s admission to the United Kingdom.
• Upper Tribunal (Immigration and Asylum Chamber): This final judgment supplied reasons, granted the Secretary of State permission to appeal on specified grounds, and recorded that RSM was admitted on 16 February 2017.